Court says man who molested daughter can keep custody of son

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Should a man who molested his 6-year-old stepdaughter also lose custody of his 2-year-old son? Not unless there’s specific evidence that he’s likely to molest the boy as well, says a state appeals court.

The issue has divided appellate courts in California and is now before the state Supreme Court in another case. In a 2-1 ruling Monday, the Second District Court of Appeal in Los Angeles said the molesting of a daughter does not, by itself, create a “substantial risk” that the same parent will molest his son.

The court said there was evidence that the father, David R., had fondled his stepdaughter and forced her to masturbate him at an apartment he was painting. The court did not say when the incident happened or whether David R. was prosecuted.

The father did not challenge a court order removing his daughter from his custody but appealed a Los Angeles Superior Court judge’s decision that also removed his 2-year-old son. The judge in that case said it was well established that “both sexes are at risk when this type of sexual abuse occurs.” But the appeals court said studies don’t support that conclusion.

For example, the court said, a study of 157 cases of family sexual abuse, published by the Journal of Child Sexual Abuse in 2009, found that 135 of the male perpetrators abused only girls, 13 abused only boys, and nine abused both boys and girls.

Los Angeles County officials in David R.’s case did not present any scientific authority or expert testimony “to support the conclusion that a person who sexually abuses a female child is likely to sexually abuse a male child,” said Justice Frances Rothschild in the majority opinion. Although the father’s actions were “abhorrent,” she said, “the purpose of the dependency law is not to punish the parent but to further the best interest of the child.”

In dissent, Presiding Justice Robert Mallano said state law presumes that a parent who molests one child poses a risk to other children in the same home. The father in this case “offered no evidence that he was not a risk to his son,” Mallano said.